Bush Whacked? 2

In part one, we began our look at the Bush administration's impact on adult. In this conclusion, we'll examine the Red Rose case and what the future may hold.

Red Rose Case
Another case that worries civil libertarians in the Bush era is the Red Rose Stories case. In 2005, the FBI raided the office of Karen Fletcher, aka Rosie, whose Red Rose website contained fictional stories that allegedly dealt with extreme topics ranging from pedophilia to bestiality, urination, scat and severe torture.

In September, Fletcher (also a Walters client) was indicted for obscenity by Mary Beth Buchanan (the same federal prosecutor who brought obscenity charges against Extreme Associates in 2003). The thing that separates Fletcher from other prosecutorial targets is the fact that her site was devoid of pictures; it was strictly a textual, fiction-oriented site, and 1st Amendment attorneys were surprised to see the federal government going after pure text, an area that, for many years, had not been prosecuted for obscenity.

Douglas considers the Red Rose indictment to be especially disturbing.

"The recent prosecution of Karen Fletcher and the Red Rose website is a grave departure from 70 years of prosecutorial precedent," Douglas said. "Pure prose without photographs was last seriously and consistently prosecuted in the 1920s."

Douglas, who heads the Free Speech Coalition's board of directors, added: "It is clearly consistent with much of the policy approach of this administration that the Department of Justice defines progress as returning to the 1920s. The prosecution of Fletcher is a very grim development."

DeWitt, who has been representing clients in the adult industry since 1980, asserted: "I think they're going to have problems with the jury in the Red Rose case. Except for the nut-cases, which is how I categorize the extremely right-wing Christians, Americans consider the written word sacrosanct. As much as they may dislike what is written, there is a tremendous respect for the written word. I think the 12 people in the jury box are going to say to the government: 'No, you can't criminalize the written word. In my country, we don't put people in jail for writing literary fiction.'"

DeWitt went on to say that as much influence as the Christian Right has on the Bush administration, it is important to remember that the Christian Right actually is a small minority, and the election data from 2004, he stressed, bears that out.

"Something like 22 or 23 percent of the people who voted for Bush in 2004 said the reason they voted for him was moral values, which is a code word for very right-wing Christianity," DeWitt said. "Bush got half of the vote; so basically, around 11 percent of the population is running the country, and the number of people consuming porn in the U.S. is much larger than the number of people who are extremely right-wing Christians."

Piccionelli fears that the Bush administration's worst attacks on the adult industry may be yet to come. If federal prosecutors cannot use obscenity laws to prosecute vanilla adult material, they have another weapon in their arsenal: 2257 age-verification laws. Piccionelli predicted that in 2007 and 2008, the Bush administration's overall game plan will be to go after vanilla erotica for 2257 violations and non-vanilla erotica for both obscenity charges and possible 2257 violations.

"The likelihood that mainstream adult material — and by mainstream, I mean Vivid, Wicked, Digital Playground, Adam & Eve, that kind of stuff — is going to be found obscene anywhere in the U.S. these days is pretty low," Piccionelli said. "But my concern is that the more mainstream your material is, the more 2257 becomes the potential avenue of attack on your company. 2257 is the government's WMD; it is their weapon of mass destruction on the adult industry. Obscenity just has too many defenses, whereas 2257 is real cut and dried; if you don't have the ID, you're in violation."

Piccionelli continued: "If the Religious Right wants people taken down, there are one of two possibilities for the Bush administration. One is you go after the really extreme material for obscenity prosecution — material that may not be within the contemporary standards of a particular community. And the other possibility is going after mainstream adult material and including in the indictments several very difficult to defend 2257 counts. That puts the defendant's back against the wall. The defendant can say, 'It's clear that my material is within the standards of this community; so your obscenity counts are just nonsense.' But the prosecutor can say, 'Yes, but you were missing this ID and that ID, and those are five years apiece.

"Any way you look it, you're still facing 25 years in prison; so instead of forcing us to prosecute you, why don't you just take a plea and admit that your material is obscene? We'll let you off with a huge fine and maybe six months in jail.' That way, the Bush administration could tell the Religious Right: 'We got this company and that company to admit that their material was obscene.' It would be red meat for the Religious Right."